181 Conn. 592 | Conn. | 1980
The sole issue on this appeal is whether a second tier subcontractor has a right to a mechanic’s lien against the owner’s property when the owner owes money to the general contractor, but the first tier subcontractor has been fully paid by the general contractor. The plaintiff, Elmer Seaman (hereinafter Seaman), brought an application in Superior Court, pursuant to General Statutes § 49-35a, to discharge two mechanic’s liens filed by the defendants Climate Control Corporation (hereinafter Climate Control) and Branford N. O. Nelson Co., d/b/a Branford Plumbing and Heating Supply Co. (hereinafter Branford) on certain real property owned by Seaman in Norwalk. The trial court, Berdon, J., rendered judgment for the defendants and the plaintiff has appealed.
The trial court’s findings of fact are largely derived from a stipulation of the parties.
"When Branford and Climate Control notified Seaman of their intentions to file mechanic’s liens pursuant to General Statutes § 49-33
Before we reach the specific question on this appeal, it is well to put into context the relationships between owners, contractors and subcontractors under our mechanic’s lien law. Those who provide services or materials in connection with the construction of a building are entitled to claim a lien on the land that they have improved if they fall into one of two categories. Lienors are protected if they have a claim either (1) by virtue of an agreement with or the consent of the owner of the land, or (2) by the consent of some person having authority from or rightfully acting for such owner in procuring labor or materials. General Statutes § 49-33.
These general observations help to clarify what is not at issue in this case. The subcontractors, even though they are second tier rather than first tier subcontractors, are prima facie within the ambit of the mechanic’s lien law. It is not necessary to their lien status that they have any direct contractual relationship either with the owner or with the general contractor (denominated the original contractor in the statutes). They have concededly given timely notice to the owner, in proper form, of their liens. There is an identifiable fund which appropriate claims for mechanic’s liens may reach, since the owner has retained an unpaid balance due under his contract with the general contractor that exceeds in amount the totality of the mechanic’s lien claims.
The sole question on this appeal, as in the trial court, is whether the defendants, second tier subcontractors, are to be denied their liens because the first tier subcontractor with whom they contracted
The parties are agreed that resolution of the rights of the plaintiff depends primarily upon the meaning of General Statutes § 49-33. In interpreting this section, the complexity of which should not be underestimated; see Stone v. Moomjian, 92 Conn. 476, 484, 103 A. 635 (1918); we are guided by well-settled principles of construction. Although the mechanic’s lien law creates a statutory lien in derogation of the common law, its remedial purpose to furnish security for a contractor’s labor and materials requires a generous construction. Camputaro v. Stuart Hardwood Corporation, 180 Conn. 545, 550, 429 A.2d 796 (1980); Stone v. Rosenfield, 141 Conn. 188, 191, 104 A.2d 545 (1954); City Lumber Co. v. Borsuk, 131 Conn. 640, 645, 41 A.2d 775 (1945). Even bearing in mind the statute’s beneficent purpose, we are, however, constrained by the language of the statute as we find it, and cannot rewrite the statute or adopt the reasoning of precedents in other jurisdictions with different statutes. Camputaro v. Stuart Hardwood Corporation, supra; New Haven Orphan Asylum v. Haggerty Co., 108 Conn. 232, 236, 142 A. 847 (1928); Hartford Builders Finish Co. v. Anderson, 99 Conn. 343, 345, 122 A. 76 (1923).
Two sentences in § 49-33
This court has had only one occasion to rule upon the rights of a second tier subcontractor after full payment to the first tier subcontractor. In Barlow
The plaintiff mounts a two-fold attack on Barlow Brothers. One prong of this attack relies on the language in cases decided both before and after Barlow/ Brothers in which this court used the theory of subrogation to describe our mechanic’s lien statute. The other prong relies on the amendment to the mechanic’s lien statute in 1925, twenty-two years after Barlow Brothers was decided, to incorporate expressly the subrogation language of the intervening cases. Examination of both of these lines of attack demonstrates that neither is persuasive.
It is true that in a series of cases beginning with Waterbury Lumber & Coal Co. v. Coogan, 73 Conn. 519, 48 A. 204 (1901), and Tice v. Moore, 82 Conn. 244, 73 A. 133 (1909), this court elaborated a subrogation theory of lien claims for our mechanic’s lien law. Some statutes in other states justify mechanic’s liens on the owner’s property on the basis that the owner is otherwise unjustly enriched by the improvement of his property. Tice v. Moore, supra, 248; Waterbury Lumber & Coal Co. v. Coogan, supra, 521; see note, “Mechanics’ Liens and Surety Bonds in the Building Trades,” 68 Yale L.J. 138, 142-45 (1958). That is not our law. In this state, a subcontractor’s right to a mechanic’s lien is said to flow from his equitable entitlement to the lien which would otherwise attach in favor of the general contractor. Tice v. Moore, supra, 248-49; Waterbury Lumber & Coal Co. v. Coogan, supra, 521. Subrogation is consistent with, and an integral
The subrogation theory, per se, does not resolve the present controversy because it provides no answer to the question, subrogated to whom? In light of the obvious linkage, however, between the subrogation theory and the limitation of the lienable fund to the unpaid obligation to the general contractor, we see no reason to read the theory restrictively to bar these claimants. In all of the reported cases in which subrogation was used to defeat a mechanic’s lien claim, it was the general contractor who had no surviving right to which the claimant could be subrogated. Tice v. Moore, supra, 249; Waterbury Lumber & Coal Co. v. Coogan, supra; see also Drazen Lumber Co. v. Jente, 113 Conn. 344, 347-48, 155 A. 505 (1931); Avery v. Smith, 96 Conn. 223, 228, 113 A. 313 (1921). In the only second tier subcontractor case, Barlow Brothers, the claimant prevailed. It is noteworthy that the subrogation cases were decided in close temporal proximity to Barlow Brothers; Waterbury Lumber in 1901, Barlow Brothers in 1903, and Tice v. Moore in 1909. This court then perceived no apparent inconsistency among them, and we see none now. In sum, our early case law, in order to protect the owner from double payment, adopted a subrogation theory limiting subcontractors to unpaid claims of general contractors. Default of, and prior payments to, intermediary first tier subcontractors did not bar the claims of second tier subcontractors.
Against this background of the reported cases, the legislative amendment of § 49-33 in 1925 appears to be a clarification of existing law, rather than, as
The amendment to the mechanic’s lien law in 1925 added language subrogating the subcontractor seeking a mechanic’s lien to “the rights of the person through whom such subcontractor shall claim.”
No different construction is compelled by the statute’s reference to “the person through whom such subcontractor claims.” (Emphasis added.) The plaintiff argues that the prefatory “the” is restrictive, and therefore subrogates the second tier subcontractor to the rights of the first tier subcontractor. It is true that the sentence immediately preceding the subrogation sentence speaks of “any person through whom” the subcontractor claims. (Emphasis added.) The earlier sentence limits all mechanic’s lien claimants to the fund created by payments owed to the general contractor, a fund described as “the amount which the owner has agreed to pay to any person through whom such subcontractor claims.” Despite the plaintiff’s argument to the contrary, we conclude, as did the trial court, that “the person” means no more than a reference to the “any person” of the preceding sentence. This confirms our reading of the statute as looking to subrogation to the claims of the general contractor.
There is no error.
In this opinion the other judges concurred.
The appellant’s single attack on the finding of facts seeks to add a paragraph of the draft finding. Since this paragraph concerns a fact not material to the trial court’s conclusions of law there is no basis for its inclusion in the finding. Practice Book, 1978, §§ 3034 (2) (b), 3039, 3045; Rushchak v. West Haven, 167 Conn. 564, 566, 356 A.2d 104 (1975); Phoenix Mutual Life Ins. Co. v. Brenckman, 148 Conn. 391, 394, 171 A.2d 194 (1961).
General Statutes § 49-33 then provided in pertinent part: “mechanic’s lien, pbecedence. bights of subcontractors. If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land, and sueh claim is by virtue of an agreement with or by consent of the owner of the land upon which such building is being erected or has been erected or has been moved, or by consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully aeting for sueh owner in procuring sueh labor or materials, sueh building, with the land on which it stands or such lot or in the event that such materials were furnished or services were rendered in the site development or subdivision of any plot of land, then sueh plot of land, shall be subject to the payment of such claim.”
It is a fact, but of no significance to the ease, that Miami had defaulted on its subcontract and had left the job voluntarily when the project was substantially completed and less than $5000 of the contract price remained unpaid by the general contractor.
The mechanic’s lien statute was technically revised in 1979. Public Acts 1979, No. 79-602. Since that revision does not affect this case, we will refer to the relevant provisions as they existed before the revision.
“[General Statutes] See. 49-33. mechanic’s lien, precedence, rights oe subcontractors. If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land, and such claim is
The mechanic’s lien, statute then in force was General Statutes (Bev. 1902) § 4135, which provided: “If any person shall have a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal, or repairs of any building, or any of its appurtenances, and such claim shall be by virtue of an agreement with or by consent of the owner of the land upon which such building is erected or has been moved, or of some person having authority from or rightfully acting for such owner in procuring such labor or materials, such building with the land on which it stands shall be subject to the payment of such claim. Such claim shall be a lien on such land, building, and appurtenances, and shall take precedence of any other incumbrance originating after the commencement of such services, or the furnishing of any such materials, subject to apportionment as provided in [predecessor of § 49-39]; but in case of removal no such lien shall take precedence of any incumbrance upon the land to which the building is removed which accrues before the building has been actually moved upon the land. Said premises may be foreclosed by the owner of such claim in the same manner as if held by mortgage.”
Prior to 1879, a person furnishing materials or services by virtue of a contract with a subcontractor was not entitled to a lien. Aider-man v. Hartford New York Transportation Co., 66 Conn. 47, 52-53, 33 A. 589 (1895); see Barlow Brothers Co. v. Gaffney, 76 Conn. 107, 110, 55 A. 582 (1903) Melvin, “Mechanic’s Liens - A Beview of Connecticut Cases,” 4 Conn. B.J. 104, 112 (1930). The statute was subsequently amended to provide a lien right in favor of material-men and laborers furnishing goods and services under an agreement with a subcontractor. Barlow Brothers Co. v. Gaffney, supra, 110-11. Cf. Ailing’s Sons Co. v. Cheshire Street Ry. Co., 83 Conn. 82, 91-93, 75 A. 143 (1910) (interpreting a lien statute pertaining solely to railroads).
By Public Acts 1925, c. 130, the legislature added to what was then General Statutes (Rev. 1902) § 4135 (now § 49-33) the following language: “No mechanic’s lien shall attach to any such building or its appurtenances or to the land on which the same may stand in favor of any subcontractor to a greater extent in the whole than the amount which the owner shall have agreed to pay to any person through whom such subcontractor shall claim subject to the provisions of said section [49-36]. Any such subcontractor shall be subrogated to the rights of the person through whom such subcontractor shall claim.”
In that case, this court had interpreted the subrogation requirement to allow the owner a windfall in the situation where the cost o£ completing the building was less than the balance remaining to be paid under the original contract.
“[General Statutes] See. 49-36. liens limited; apportionment; PAYMENTS TO original contractor. No such lien shall attach to any building or its appurtenances, or to the land on which the same stands, or any lot, or any plot of land, in favor of any person, to a greater amount in the whole than the price which the owner agreed to pay for such building and its appurtenances or the development of any such lot, or the development of any such plot of land. When there are several claimants and the amount of their united claims exceeds such price, the claimants, other than the original contractor, shall be first paid in full, if the amount of such price is sufficient for that purpose; but, if not, it shall be apportioned among the claimants having such liens, other than the original contractor, in proportion to the amount of the debts due them respectively; and the court having jurisdiction thereof, on application of any person